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Income Tax Appellate Tribunal, ‘B’ BENCH LUCKNOW
Before: HON’BLE SHRI G. D. PADMAHSHALI & SHRI SUBHASH MALGURIA
द्वधरध / Appearances Assessee by : Mr Saurabh Gupta [‘Ld. AR’] Revenue by : Mr Neil Jain [‘Ld. DR’] सुनवाई की तारीख / Date of conclusive Hearing : 09/07/2024 घोषणा की तारीख / Date of Pronouncement : 19/09/2024 आदेश / ORDER Per G. D. Padmahshali, AM; This twin appeals of the assessee challenges the separate DIN & Order No ITBA/NFAC/S/250/2023-24/1058067418(1) & 1058067746(1) both dt. 20/11/2023 passed by the National Faceless Appeal Centre, Delhi [‘NFAC/CIT(A)’ hereinafter] u/s 250 of the Income Tax Act [‘the Act’ hereinafter] which respective arising out of order of assessment passed u/s 147 r.w.s. 144 r.w.s. 144B of the Act and order of penalty passed u/s 271AAC of the Act anent to assessment year 2017-18 [‘AY’ hereinafter].
ITAT-Lucknow Page 1 of 12 Rakesh Rawat Vs ITO Ward 4(1)
& 384/LKW/2023 2. Since facts and threadbare issue involved in this bunch of appeals are common, identical & interconnected, on the request from rival parties, for the sake of brevity these appeals are heard together for a common and consolidated order.
The factual matrix relating to ITA 383/LKW/2023 as narrated by the rival parties suggests that, the assessee is an individual in whose case the Revenue was in receipt of information relating to purchase of immovable property & cash deposits. After recording reasons and obtaining prior approval a reassessment proceeding in assessee’s case by service of notice u/s 148 of the Act was initiated. In the event of failure on the part of assessee to respond any of the notices issued u/s 148, 142(1) & show cause notice u/s 144 of the Act, the Ld. AO culminated the assessment proceeding to the best of his judgment and brought to tax entire value of immovable property and sum deposited into bank account u/s 69 of the Act treating them as unexplained investment by an order dt. 28/03/2022 passed u/s 147 r.w.s. 144 r.w.s 144B of the Act.
Aggrieved by the aforestated order of assessment, the assessee instituted an appeal before first appellate authority on 18/11/2022 admittedly with a delay of 235 days after the expiry of statutory period, which the Ld. NFAC dismissed recording the following findings; ITAT-Lucknow Page 2 of 12 Rakesh Rawat Vs ITO Ward 4(1)
& 384/LKW/2023 ‘5. Considering the above facts and material on record, it is held that the appeal should have been filed by the Appellant within the statutory period of 30 days from the service of demand notice, but the appellant failed to do so and filed the said appeal after a lapse of 235 days. Further, even while seeking the condonation of delay, the Appellant has not submitted the request in Affidavit form to establish such bona-fide reasons or filed any confirmation from the present or the past counsel. As the responsibility to file timely appeals (in such matters involving state revenue) falls on the Appellant assessee itself and not his counsel as such. Hence, the reasons for such a pro-longed delay are not found to be bona-fide or genuine. Hence, there being an inordinate delay of 235 days in filling of this appeal and further the appellant has not furnished cogent reasons for such a huge delay in filling of appeal before the first appellate authority. Therefore, the undersigned is satisfied that, this appeal of the appellant is liable to be rejected for want of such valid and genuine reasons. In the result, the appeal of the appellant is dismissed.’ (Emphasis supplied) ITAT-Lucknow Page 3 of 12 Rakesh Rawat Vs ITO Ward 4(1)
& 384/LKW/2023 5. ITA 384/LKW/2023; In pursuance of satisfaction recorded in the order of assessment passed u/s 147 r.w.s. 144 r.w.s. 144B of the Act, the Ld. AO initiated a penalty proceedings for under reporting of income u/s 271AAC of the Act. In the event of assessee’s failure to respond/reply to any of the notices dt. 26/03/2022, 26/07/2022 and 04/08/2022 the Ld. AO culminated the penal proceedings by an order dt. 21/09/2022 imposing a penalty @ 10% of tax payable computed in relation to additions made u/s 69 of the Act.
The assessee assailed aforestated imposition of penalty before first appellate authority in a separate appeal filed on 19/11/2022 i. e. with a delay of 59 days after the expiry of statutory period, which came dismissed by the Ld. NFAC recording the following findings; ‘5. Considering the above facts and material on record, it is held that the appeal should have been filed by the Appellant within the statutory period of 30 days from the service of demand notice, but the appellant failed to do so and filed the said appeal in their Penalty matter after a lapse of 59 days. Further, it is noted that even in case of their Quantum appeal matter for this very AY 2017-18 and relevant to this penalty matter, there is a delay of 235 days in filing their ITAT-Lucknow Page 4 of 12 Rakesh Rawat Vs ITO Ward 4(1)
& 384/LKW/2023 appeal before the first appellate authority and where the assessee's quest for condonation for delay in filing the first appeal, has been rejected for lack genuine or bona-fide reasons. Further, even while seeking the condonation of delay in this Penalty appeal matter, the Appellant has not submitted the request in notarised Affidavit form to establish such bona- fide reasons or filed any confirmation from the present or the past counsel. As the responsibility to file timely appeals (in such matters involving state revenue) falls on the Appellant assessee itself and not his counsel as such. Hence, the reasons for such a pro-longed delay are not found to be bona-fide or genuine. Hence, there being an inordinate delay of 59 days in filling of this appeal and further the appellant has not furnished cogent reasons for such a huge delay in ling of appeal before the first appellate authority. Therefore, the undersigned is satisfied that, this appeal of the appellant is liable to be rejected for want of such valid and genuine reasons. In the result, the appeal of the appellant is dismissed.’ (Emphasis supplied) ITAT-Lucknow Page 5 of 12 Rakesh Rawat Vs ITO Ward 4(1)
& 384/LKW/2023 7. During the course of hearing, in relation to twin appeals the Ld. AR Mr Gupta commonly submitted before us that, due to unavoidable reasons the assessee could neither present his cases effectively before the Ld. AO nor before the first appellate authority. For condonation of delay in both the cases the assessee did file separate letters, however affidavit substantiating the reasons could not be accompanied. The non- prosecution of appeals were undeliberate and were attributable to sheer ignorance of the appellant, hence in the interest of justice the assessee prays for remand with a direction for de-novo adjudication. Au contraire, referring to the acknowledgement placed on record by the appellant showcasing the uploading of application for condonation, the Ld. Dr Mr Jain also commonly avowed that, since the assessee did neither had any sufficient reasons nor he could bring one on records, and indeed there was nothing to showcase delays were undeliberate. These cases badly lacks from affirming on affidavit that such delays were unintentional and were under bonafied belief, therefore assessee deserves no relief on the ground of limitation. To drive home this contention the Ld. DR has strongly pressed into service the ratio laid in ‘Basawaraj & Anr Vs Spl Land Acquisition Officer’ [2014, AIR 746 (SC)] and ‘Siva Industries & Holding Ltd. Vs ACIT’ [2024, 153 Taxmann.com 354 (Mad)] ITAT-Lucknow Page 6 of 12 Rakesh Rawat Vs ITO Ward 4(1)
& 384/LKW/2023 8. We have heard rival parties’ submissions on limited issue condonation of delay occurred in instituting the appeal before Ld. first appellate authority and request seeking remand of matters therefore and subject to rule 18 of ITAT Rules, 1983 perused the material placed on record. We note that the assessment order u/s 147 r.w.s. 144 r.w.s. 144B of the Act was passed on 28/03/2022 & whereas penalty u/s 271AAC(1) of the Act was passed on 21/09/2022. These orders were separately assailed before Ld. NFAC and from Form No 35 it is admittedly evident that impugned orders were served to assessee on the date they were passed. In terms of provisions of section 249(2) of the Act, the appeal against order of assessment or penalty order was required to be filed within thirty days from the date the orders sought to appealed were received by the assessee. In the instant case the appeal against impugned orders admittedly were filed before on 18/11/2022 & 19/11/2022 respectively. Ostensibly with a delay of 235 & 59 (approx.) days from the expiry of statutory period prescribed u/s 249(2) of the Act. The said appeals were since time barred by limitation hence dismissed in-limine in the absence of document/explanation establishing sufficient reasons behind occurrence of such inordinate delay. The appellant is no different even in second appellate proceedings too.
ITAT-Lucknow Page 7 of 12 Rakesh Rawat Vs ITO Ward 4(1)
& 384/LKW/2023 9. Let us first consider the core principles culled out by the Hon'ble Supreme court in ‘Esha Bhattacharjee Vs Managing committee of Raghunathpur Academy and Ors’ reported in 12 SCC 649, which are compelling to be referred herein before we actually vouch the issue of sufficiency of reasons in given facts & circumstances; (a) Lack of bonafied imputable to a party seeking condonation of delay is a significant and relevant fact; (b) The concept of liberal approach has to encapsulate the conception of reasonableness and totally unfettered free play is not allowed; (c) The conduct, behaviour and attitude of a party relating to its negligence cannot be given a total go-bye in the name of liberal approach. (d) If the explanation offered is concocted or grounds urged in the applications are fanciful, the Courts should be vigilant not to expose the other side unnecessarily to face such litigation. (e) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of the law of limitation. ITAT-Lucknow Page 8 of 12 Rakesh Rawat Vs ITO Ward 4(1)
& 384/LKW/2023 (f) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring notion that Courts are required to condone delay on bedrock of principle that adjudication of lis on merits is seminal to justice dispensation system; (g) The increasing tendency to perceive the delay as a non- serious matter and hence lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, with legal parameters (Emphasis supplied)
In the absence of any application/petition and affidavit accompanying corroborative & independent evidence that such inordinate delay in filing appeal before Ld. NFAC were occurred for a sufficient cause, it is much less possible for quasi-judicial authority to turn-a-blind-eye and accept the same without evidence. At the outset we are not persuaded to accept that the appellant’s ignorance is a sufficient cause preventing him from instituting the appeals within the statutory time limit before Ld. NFAC. We note that, there is neither a plausible explanation nor any whisper in the entire narration of delay or about a single step taken to showcase the required seriousness, and not even an affirmation that delays were undeliberate or unintentional.
ITAT-Lucknow Page 9 of 12 Rakesh Rawat Vs ITO Ward 4(1)
& 384/LKW/2023 11. We also observed that, the appellant assessee before both first & second appellate proceedings dejectedly failed to demonstrate that there was indeed any ‘sufficient cause’ or ‘sufficient reason’ behind the inordinate delay caused in filing the appeal before Ld. NFAC. It is also on record that, there was no affidavit to establish that the said delay was unintended or undeliberate in any manner. In this circumstance, we see strong reason in countenancing the views canvassed by of the Ld. Mr Jain that, the true length of delay is no matter, the acceptability of explanation is the only criteria as the primary function of quasi-judicial authority is to adjudicate dispute between parties to advance substantial justice. The Hon'ble Supreme Court vide para 15 has summarized the law on the issue on delay condition in ‚Basawaraj & Anr Vs Special Land Acquisition Officer’ [L4 SSC 8U(SC)] as; "15. The law on the issue can be summarized to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted ITAT-Lucknow Page 10 of 12 Rakesh Rawat Vs ITO Ward 4(1)
& 384/LKW/2023 diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature". (Emphasis supplied)
It is the trite law that, the burden is on the party claiming condonation of delay to place before the appellate authorities, in clear and explicit terms, all facts on which the party relies, so that the appellate authorities/court can come to the conclusion that it is not a case of want of diligence or inaction on the part of the applicant. In the instant case, admittedly, the assessee has not shown any action or vigilance for an inordinate/immoderate period after the assessment & penalty orders were served upon him. The appellant has not proved any inaction or negligence on the part of the Revenue; much less have they pleaded any ITAT-Lucknow Page 11 of 12 Rakesh Rawat Vs ITO Ward 4(1) & 384/LKW/2023 action or vigilance on their own part. Thus, the appellant failed to make out a case that there was a sufficient cause for delay in filing the appeals before Ld. NFAC and remained negligent and did not initiate any steps at all. Inaction and want of diligence on the part of the appellant/applicant would not entitle it to the benefit of the provisions of section 249(2) of the Act. Therefore, keeping in view the propositions of law laid down by the judicial precedents pressed into service and having regard to the totality of the facts and circumstances of present cases as discussed above, in our considered view the appellant is found to be casual, non-serious and non-vigilant in preferring/instituting the appeals before Ld. NFAC against the assessment & penalty orders. In order to avoid injustice to respondent Revenue, the impugned orders passed by the Ld. NFAC dismissing the appeals of the assessee in-limine is upheld.
These twin appeals of the assessee in result stands DISMISSED. In terms of rule 34 of ITAT Rules, the order pronounced in the open court on this Thursday 19th day of September, 2024 -S/d- -S/d- SUBHASH MALGURIA G. D. PADMAHSHALI JUDICIAL MEMBER ACCOUNTANT MEMBER ददनाांक / Dated : 19th day of September, 2024 आदेश की प्रनिनलनप अग्रेनषि / Copy of the Order forwarded to :
1. 1. अपीलाथी / The Appellant. 2. प्रत्यथी / The Respondent.